Workers' Compensation Perspectives

If you are reading this, you have an interest in workers’ compensation and workplace health and safety. The questions addressed here come from a variety of sources: participants in workshops I deliver, learners in courses I instruct, and my own inquiries from the research and consulting. I don't have all the answers but I post questions (and my responses) on topics I hope will improve workers' compensation, public policy and workplace health and safety

Monday, May 21, 2018

On a recent weekend morning, I passed a crew working on water system pipes in an enclosed space below the road surface. When the flagger signalled me forward, she was clearly in a work situation that was at least as hazardous as her unseen coworkers in the confined space below. Another crew was replacing an electrical transformer in the next block. Near the mall, there was a roofing crew installing standing-seam roofing on a steep slope. As I drove home I notices the neighbour’s new garage door being installed by another crew of young workers… Weekend workers seemed to be everywhere.

In the course of my weekend, I saw shopkeepers, clerks, maintenance workers, delivery drivers, landscapers, arborists, installers and many other workers. I saw farmworkers pruning and maintaining drainage in the nearby fields and a crew of greenhouse workers coming off shift. The cement plants visible in the distance were both in operation and I heard the ferry whistle sound with another full load typical of weekends. I passed the hospital and thought of the doctors, nurses, therapists, technicians, cleaners, food service staff working weekends. The emergency medical services technicians manning the ambulances at the emergency and the police cars in the parking lot reminded me of their 24/7 responsibilities and service. Weekend work: Not exceptional

Weekend work generally used to be the exception. The tradition of Sunday as a “day or rest” predates Roman Emperor Constantine’s 321 decree but that edict solidified the tradition in western society. Henry Ford’s introduction of the five-day work week in 1926 marked a major turning point in establishing the Monday to Friday workweek for industrial workers, although other employers had adopted Saturday and Sunday non-work cycles, often to accommodate religious observances of workers. The Fair Standards Act (1938) in the US helped standardize the 40 hour workweek and two-day weekend in the early 1940s.

Of course, a few manufacturing processes always required continuous operation and security occupations like firefighting, defense and police work have always operated seven days a week. At the turn of the twentieth century, legislation designating Sunday as a day of rest was fairly common, although the enforcement varied widely. Societal attitudes, technological change and the evolution of the law contributed to the greater prevalence of work on weekends. In Canada, Lord’s Day Act of 1906 was ruled as unconstitutional in 1985 and similar statutes in many jurisdictions have been abandoned as public pressure for access to goods and services on weekends increased.

The reality of work in the 21st century is that many workers are actively working weekends and statutory holidays. Sometimes the work is a regular part of the schedule but often weekend work is unique to an event or function. Examples of weekend work and workers include:

Essential service workers in hospitals, law enforcement, first response fire/emergency services

Infrastructure workers (with 24/7 responsibilities)

Multi-job holders with weekend positions or “gigs”

Security and custodial workers

Hospitality and entertainment workers

“Event” staff

Workers’ compensation and occupational health and safety personnel will often responds to serious injury events and imminent dangers on weekends; how much effort is directed to inspection, prevention and claims/rehabilitation activities outside the Monday to Friday, nine-to-five traditional work-week? Surprisingly little in proportion to the risk exposure, fatal injury reports, and distribution of claims that actually occur.Significant Risk Exposure on Weekends

Weekend workers have similar or even higher exposure to hazards than workers doing equivalent work on regular workdays (at least during daytime hours). For example, many regular Monday to Friday workers have job demands that take them to the office or plant on weekends; these workers face health and safety risks associated with fatigue, work pressure, often working alone or in isolation. They may also face risks associated with a changed work environment. The typical resources available during their regular workweek (such as first aid attendants) may be unavailable on weekends. In many organizations, staff working weekends to meet deadlines, conduct repairs, or implement new systems are given no orientation or instruction regarding health and safety for weekend work.

4% usually worked seven days a week, and a further 7% usually worked six days a week;

14% usually worked on Saturdays and 8% usually worked on Sundays;

For multiple-job holders (one main job and one or more additional jobs),

19% usually worked seven days a week, and a further 19% usually worked six days a week;

37% usually worked on Saturdays and 26% usually worked on Sundays;

57% worked on both weekdays and weekends

Work Fatalities on Weekends equal the Average for Weekday fatalities

US data on workplace fatalities for a recent 20-year period confirms weekend work can be deadly. For fatalities 1992 through 2011, (excluding Sept 11, 2001 fatalities and missing data reports), there were 95,716 fatalities reported on weekdays (Monday to Friday), an average count of fatalities on weekdays was 19,143. Saturday and Sunday combined accounted for 19,283 occupational fatalities, equivalent to the average for regular workdays. [Chart Data adapted from BLS, Fatal occupational injuries by day of week and month, 1992–2011, TED: The Economics Daily, DECEMBER 01, 2014 https://www.bls.gov/opub/ted/2014/ted_20141201.htm ].

Data supplied by WorkSafeBC for 2017 injuries shows the combined number of accepted time-loss claims that occurred on weekends and statutory holidays were roughly equivalent to claims accepted for injuries occurring on any Monday-to-Friday weekday. Women, who account for about 37% of accepted claims overall in that province, were disproportionately represented in the weekend stats, accounting for:

48% of accepted time-loss injuries that occur on Saturday

49% of accepted time-loss injuries that occur on Stat Days

55% of injuries that occur on Sunday

Limited Loss-prevention, Planned Inspections and Service Access for Weekend Workers

Loss prevention initiatives are diverse and an important part of protecting workers. Access to on-line tools and publications is available 7 days a week but few agencies have regular plans or programs to provide in-person or even phone or chat access to safety professionals for non-emergent, non-imminent risk situations on weekends. Planned or programmed inspections are an essential component of comprehensive prevention strategies. Unannounced planned and random inspections are components of effective loss prevention strategies. If the risk of detection of unsafe work is non-existent on weekends, the deterrent effect approaches zero.

I contacted a sample of workers’ compensation authorities with and occupational safety-health inspectorates to determine if the services available to workers who work weekends. Most replies included a commitment to be “responsive” to imminent threats or serious injury incidents on weekends but none reported broad-based prevention inspections or claims access to serve workers on weekends. A few jurisdictions noted specific projects in specific industries where inspections on weekends would be carried out. The following response (from a US state agency) was typical:

We do weekend work, but it’s often the result of a fatal notification. Our toll-free number for reporting fatalities, hospitalizations, etc., is covered 24/7.During construction season, we try to have our compliance safety officers pair up and work an occasional Saturday or Sunday, but it’s on an irregular basis.So basically, the answer is no, our agency is not able to provide the weekend resources you describe.

Most workers’ compensation agencies referred me to online and “self-serve” resources but few had options for workers to speak directly with someone about a claim outside the regular Monday to Friday workweek. WorkSafeBC’s TeleClaim service (where workers can call to report injuries rather than having to fill out and submit forms, receive information, ask questions and get help to obtain other services) for example, states on WorkSafeBC.com:

Claims Call Centre/TeleclaimContact us with any questions about the claims process. Phone toll-free (Canada):1.888.967.5377 (1.888.WORKERS)Monday to Friday 8 a.m. to 6 p.m.

Limited data on weekend risks, injuries and claims

Data on work injuries by day of week are not regularly published by most workers’ compensation and occupational safety and health authorities. Aside from special analysis such as those cited here, there are few sources of current information on the weekend workforce, risks and injuries. Despite every reported workplace injury and workers’ compensation claim having a mandatory “date of injury” field, few agencies routinely report statistics on injuries or accepted claims by day of week.
The lack of routine reporting may mask the magnitude of the risk and contribute to the lack of resources and services assigned or available to support the health and safety of weekend workers.

Proportionate service and access for weekend workers

Weekend work is now a typical aspect of the labour force. There is evidence that women are disproportionately represented in weekend work. Work on weekends exposes workers to risks without the same level of loss prevention and inspection services or workers’ compensation access and support afforded Monday-to-Friday workplace risks and injuries.

What level of service and support should weekend workers receive from workers’ compensation and occupational health and safety (OH&S) agencies? There is no one right formula but proportionality provides a reasonable guide. Reporting the proportion of the workforce working weekends and the proportion of injuries occurring outside the Monday-Friday traditional workweek in every jurisdiction should be a routine and transparent process. Workers compensation and OH&S authorities should be able to justify the level of services they provide to weekend workers based on these data. If one sixth of reported injuries and fatalities occur on weekends, then deploying one sixth of the loss prevention resources, inspection services and workers’ compensation resources ought to be reasonable targets.

Tuesday, April 10, 2018

Every workers’ compensation system provides certain payments
in the event of a work-related death of a worker.The expectation that workers’ compensation
insurance will cover the full cost of a funeral and burial of an injured worker,
however, is not the reality in all jurisdictions.

Most commonly, the amount to cover funeral and burial
expenses is a separate benefit from payments or compensation that might be available
to survivors and dependents.Where there
are no survivors or dependents, the funeral or burial amount may be the only workers’
compensation payment made with respect to the work-related death. Statutory dollar limits or policies that
exclude items connected with funeral or burial costs result in many
jurisdictions falling far short of coverage of the full cost of a funeral and
burial.

Statutory provisions
vary widely

The exact statute wording varies by jurisdiction.Here is a typical section from the Colorado
code:

When, as a proximate
result of an injury, death occurs to an injured employee, there shall be paid
in one lump sum within thirty days after death a sum not to exceed seven
thousand dollars for reasonable funeral and burial expenses. Said sum may be
paid to the undertaker, cemetery, or any other person who has paid the funeral
and burial costs, if the director so orders. If the employee leaves no
dependents, compensation shall be limited to said sum and the compensation, if
any, which has accrued to date of death and the medical, surgical, and hospital
expenses provided in articles 40 to 47 of this title. If the deceased employee
leaves dependents, said sum shall be paid in addition to all other sums of
compensation provided for in this article.

Allowed expenses for burial and funeral costs may be paid
directly to providers such as funeral homes and memorial societies; they are
often paid very quickly; other benefits or compensation for dependents and
survivors which may take longer to adjudicate and conclude.

Lump-sum payments may
be intended to cover funeral or burial expenses

Some jurisdictions make lump sum payments to the estate upon
the work-related death of a worker.The
specified amount may be a significant sum for dependents and survivors at a
time of need. In a few cases, as in Kentucky, the lump sum may be the only
amount payable because of a work-related death. Kentucky’s statute, for
example, makes this statement:

If an employee’s death occurs as a result of the injury, a lump sum payment is made to the employee’s estate, from which burial expenses are to be paid. The amount of the lump sum payment changes annually.

The lump-sum value in Kentucky increases annually with
inflation.(2017:$82,022.93 $US).

Lump-sum provisions for surviving spouse and dependents are
more common in Canada and Australia and are typically paid in addition to
funeral and burial expenses.In some
cases, lump sum payments are independent of survivor or dependent
benefits.In Quebec, if a worker dies
without dependents, the father and mother (or the estate if both are dead) are
entitled to a lump sum of $26,986 each ($CDN 2015).

In Australia, the lump-sum payment amount varies by state.In New South Wales, for example, the lump sum
a lump sum payment (currently $791,850 $Aus) in addition to a weekly payment
per dependent child (currently$141.80
$Aus).The lump sum is payable to the
estate if there are no financial dependents.The funeral expense reimbursement in NSW is limited to a maximum of
$15,000 $Aus and covers typical items including funeral director's professional
fees, cost of the funeral service (including cremation or burial), mourning
car, cemetery site, flowers, and newspaper notice.

Components of a
typical funeral and burial may not be covered

Components of a typical funeral and burial may be excluded
from consideration by workers’ compensation law or policy.WorkSafe Victoria, for example, explicitly
excludes some items from coverage:

WorkSafe [Victoria] will not pay
for:…

services or items not considered
reasonable - WorkSafe does not generally consider the following items to be
part of the reasonable costs of a burial or cremation:

Some jurisdictions are less specific about what services
will be paid for and may separate some expenses from the maximum allowed
expense.WorkSafeBC’s policy states:

The employer of the worker is
required to bear the cost of transporting the body to the nearest business
premises where funeral services are provided, and if burial does not take place
there any additional transportation may, up to the sum set out below, be paid
by the Board.

Although cultural, religious, social, and economic factors
determine the cost of a funeral and burial, one might expect workers’
compensation systems to have similar dollar limits regarding burial and funeral
expenses.However, the funeral and
burial maximum expense covered in US, Australian and Canadian workers’
compensation jurisdictions varies widely.

In the US, the median burial benefit is
specified as having a maximum of $7500 but the range is quite broad:South Carolina has a maximum only $2500;
Rhode Island pays up to $20,000 ($US).

In Canada, Nova Scotia has the lowest funeral
benefit maximum at only $5000 while the adjacent province of New Brunswick has
a maximum benefit of $16,246.Interestingly, Ontario has a minimum
funeral benefit of $2948.10 but no statutory maximum.Reasonable costs will be reimbursed. ($Can)

In Australia and New Zealand, the range is a
little narrower.ComCare, the federal
workers’ compensation system, is in the mid-range at $11,459.25 while New South
Wales and Northern Territories are at or about $15,000 (Aus$).

New Zealand has a $6021 (NZ$) maximum

It is not clear in policy documents I could review why
jurisdictions with low maximum amounts for funeral/burial expenses are so
restrictive.Nor is it clear why a
particular value has been chosen as a maximum in states with higher
maximums.Many amounts are fixed in
legislation while others are adjusted by automatic formula.The Northwest Territories and Nunavut is to
link the maximum funeral expense to 13% of the yearly maximum insurable
earnings (currently $90,600 so, 13% would be $11,778 ($Can)).

Unduly restrictive burial or funeral costs can add stress to
grieving survivors and family. Funeral and burial expenses exceeding an arbitrarily
low limit will have to be paid from some other source, often out of the
benefits family members might otherwise need for their own support.

Costs of a “normal”
funeral and burial

The United Nations agency, the International Labor
Organization (ILO), provides guidance on what member states should mandate in
the event of a work-related death. Convention:

In addition [to the cash benefit to
widow, widower, dependent], a funeral benefit shall be provided at a prescribed
rate which shall not be less than the
normal cost of a funeral…

[Note: Canada, the US and Australia are not signatories to
this convention.]

What is the “normal cost of a funeral” ?According to the National Funeral Directors
Association website ( http://www.nfda.org/news/statistics
), the 2014 “National Median Cost of an Adult Funeral with Viewing and Burial”
including vault was $8,508 (US).This amount
includes the typical things you would expect:transfers, embalming, casket, viewing, hearse, printed memorial package,
etc.

What’s not included in the direct cost survey are some
common expenses normally associated with funeral and burials in the western, predominantly
Judeo-Christian tradition.Church services
(including costs for organist, choir), religious officiant (priest, rabbi, minister)
for grave-side internment, reception with catering for grievers, and grave
marker. Also not include are indirect costs which may include travel and
accommodation for non-dependent family members and relatives.There may be additional fees depending for
items such as certified copies of the death certificate and other documentation
often provided by the funeral home.

The median cost used in this analysis, therefore, understates
the full cost associated with a normal funeral.It is, by definition, a midpoint in a distribution of costs for a
particular set of services and products covered by the survey.

Half of US WC systems
have dollar limits less than the median cost of a funeral and burial

Using $8,500 as the NFDA median cost reference point for
normal funeral costs in 2014, I used data from the IAIABC/WCRI 2016 survey of
Workers’ Compensation Laws to determine which US states failed to meet or
exceeded this standard.Twenty-seven US state
workers’ compensation authorities reported maximum funeral benefits that fell
below the $8,500 threshold, often by a significant amount; 18 states had
maximum burial benefits of $8500 to $10,000.Only 4 states had maximums greater than $10,000. These later two groups exceed the ILO
standard of “not less than the normal cost of a funeral.”

Kentucky is excluded from this analysis because its workers’
compensation statute does not have a stated maximum.As noted earlier, Kentucky’s statute related
to funeral expenses is KRS 342.750 (6) provides for a “death benefit” from
which it is intended funeral, burial and other expenses would be paid.The 2014 value for that benefit was
$75,541.95 ($US).

Funeral and Burial
costs may be the only workers’ compensation expense

In some cases, the benefit paid to offset the funeral or
burial expenses may be the only compensation payable under a workers’
compensation claim. This is commonly the
case where death in the course of employment is immediate and there is no
spouse or dependents. In such cases,
there will be no medical or hospital expenses and no temporary or permanent
disability workers’ compensation costs. As
one jurisdiction explains:

It sometimes happens that a
childless, unmarried worker is killed on the job leaving no dependents. In that
case, his or her estate receives a burial allowance of up to $6,000 but nothing
else.

I contacted Michigan’s Workers’ Compensation Agency
regarding the limitations of their statute with the following hypothetical
case:

N. is a 50-year-old land
surveyor.She is unmarried with no
children or other dependents.She has no
living siblings or parents. While surveying along a river, the bank gives
way.She is observed falling into the
rushing river and swept away in the torrent.Her body is never recovered. Her executor files a workers' compensation
claim but is unsure if there is anything payable.There were no funeral or burial expenses.

Michigan authorities confirm that no workers’ compensation
costs would be incurred in such a case.Even costs associated with a “memorial service” would likely be denied as
the statute provides only for, funeral and burial expenses.

Employer Impacts

The emotional and financial impacts of a staff member’s
work-related death cannot be ignored.There may be broader mental health consequences for co-workers and other
staff members as well as investigation costs, operational costs to the employer.
Except for the potential costs
associated with accepted claims from other workers physically and/or
psychologically injured in association with the event, these costs are not
covered by workers’ compensation. If there are minimal or no workers’
compensation claim costs associated with the death of a worker, employers may
still experience higher premiums.

In the Michigan example noted above, the death event may
place the employer in a high-risk category that results in higher
premiums.In some jurisdictions, the average cost of all
fatality claims is applied to the employer’s “claims cost, which may in turn
impact experience rating (ER also called Ex Mod) that ultimately impacts
premium.

(3) ER [Experience Rating]
adjustments are based solely on claims costs. The costs used are those directly
associated with compensation claims. The cost used for fatal claims is the
five-year moving Board-wide average rather than the actual cost of each claim.

-WorkSafeBC,
Assessment Manual 1-42-1

Underwriting or direct premium costs may not be the only
impact.Many workers’ compensation
systems offer rebates or safety “dividends”; a traumatic work-related death may
disqualify the employer from receiving this payment.In Ontario, for example, the employer may be
disqualified from receiving its share of a “safety group” rebate or other
rebates from WSIB (see WSIB Fatal Claim
Premium Adjustment Document No.: 14-02-17)

Recommendation:
Flexibility and compassion

Every work-related death has unique emotional and financial
impacts on families, friends, co-workers and employers. The years of potential life lost to a
work-related death are priceless; the workers’ compensation insurance
consequence should never be costless. As
noted, cultural, social, and traditional factors can impact cost of an
appropriate funeral and burial.These
factors may result in variation over and under the normal or average cost of a
funeral and burial. A worker’s family or
estate may have recourse to other sources of reimbursement or payment for a
funeral, however, in my view, workers’ compensation should be the first payer
for work-related death.

Policies on reimbursement should not be overly restrictive
nor should the overall maximum cost be strictly limited to the median cost used
in this analysis or dismissive of the additional service and items that may be
required.A policy guideline that allows
for some discretion to exceed a policy maximum and cover the full cost of a
funeral and burial in certain circumstances seems appropriate.

The idea that a worker’s work-relate death can be costless
(or near costless) from a workers’ compensation insurance perspective is concerning.The possible inference that a worker’s life
has no or little value is clearly in opposition to common sense. Many workers’
compensation systems have policies clearly recognizing that every worker’s life
has value.Demonstrating that
recognition with significant compensation costs whether averaged across all
fatalities, paid to the estate or provided for the full cost of a memorial,
funeral and/or burial reinforces this principle.

Thankfully, the number of work-related fatalities has fallen
over the years.If arbitrarily low
limits on funeral and burial expenses were related to the financial costs of
higher fatality rate, then that justification no longer exists.Every worker who passes away as a result of a
work-related injury, illness or disease deserves the dignity of a funeral,
memorial and proper burial.Workers’
compensation systems should provide for that.

Tuesday, March 13, 2018

Women represent about 47% of the employed labour force in United
States and Australia, 48% of the employed labour force in Canada.One might expect the hazards in the
workplace to be similar for men and women and that is true for some risks.Women working in construction doing the same
work as men likely face similar risk of injury from falling objects, falls from
elevations, lacerations, as well as pinch and “caught-in” injuries.Many women working in construction are
involved as flaggers where transportation/struck-by
injuries more common. Women and men working as flaggers face the same hazards from drivers ignoring "cone zone" rules.

Even if women and men face identical hazards, the risk and
rate of injury may differ. Variations in exposure, task selection/role assignment
and even hours of work can influence published injury rates.

There are, of
course, other variations that change the risk and injury rate profiles for both
men and women. Equitable work for men
and women often means different approaches that address the realities of
difference between them and the context in which they work. One OSHA paper [Advisory Committee on Construction Safety and
Health (ACCSH). 1999. Women in the Construction Workplace: Providing Equitable
Safety and Health Protection. U.S. Department of Labor. Available at: https://www.osha.gov/doc/accsh/haswicformal.html] noted differences
and health impacts of:

Workplace culture

Sanitary facilities

Personal protective equipment and
clothing

Ergonomics

Reproductive hazards

Health and safety training

The differential impact of these issues on the health and
safety of women and men may not be fully realized or acted upon.Inspectors may only note the presence or
absences of PPE and not the appropriateness of the range of sizes and fit
available for workers.The standard of
sanitary facilities may not be high on the priority list for workplace safety
and health officers but, as the study points out, the quality of what’s
provided can have greater impact on women’s health.In the era of “#metoo”, there may be greater
awareness of sexual harassment on the worksite, but how many worksite
inspections actually address workplace culture, training and enforcement?

These are not trivial issues.These issues result in real harm to women,
harm that may not always meet the traditional threshold for a workplace injury
claim.Psychological injury, bladder
infections, ergonomic injuries are often the subject of greater adjudication
scrutiny and contribute to a disproportionately high rate of denied workers’
compensation claims made by women.The
common experience of women having claims denied leads to a reluctance to even report
harm let alone file claims.This
compounds the harm, perpetuates the problem, and hides the magnitude of gender
bias in both prevention and workers’ compensation.

Although the labour force is almost evenly split between
males and females, the pattern of work is not exactly the same.Women tend to be over-represented in work
outside the 9 to 5, Monday to Friday work paradigm—and when most regulatory
inspections and access to services take place.Despite women experiencing a disproportionately high number of injuries
on weekends and statutory holidays, there is little evidence that prevention
inspections and services are equally available and allocated accordingly.

Inspectorates and prevention agencies need to assess their
allocation of resources in just in ways that expose gender bias.Metrics that show an equitable allocation of resources, access and
activities to sectors dominated by women would be a start.Anecdotally, the expectation of women and men
expecting to see a workplace health and safety officer on their worksite is
vastly different and begs the question, why. Measurement matters.

Measurement is the first step that leads to control and eventually to improvement. If you can't measure something, you can't understand it. If you can't understand it, you can't control it. If you can't control it, you can't improve it.

- H. James Harrington (Author, columnist, a Fellow of the British Quality Control Organization and the American Society for Quality Control).

Is there a systemic bias in the system?
It would not be the first time this question has been raised nor would
it be surprising to find that workers’ compensation and occupational health
& safety have similar inherent bias as shown in drug studies, ergonomic
tables and other medical research.

Some might argue that the risk, as evidenced by injury and
claim rates, is higher for men.The
roughly 60/40 split in male/female time-loss injuries should support a similar
distribution in prevention resources and efforts; fair argument, but I have
seen no agency that reports efforts or activities on this metric.Nor have I seen any reports of workplace
inspectorates being evaluated through a gender lens.

All workers deserve and receive equal protection through
prevention and inspection services.Saying our current workers’ compensation, prevention, and enforcement
systems do that does not necessarily make it so.It is time to take a hard look at what we are
doing and not doing to achieve truly equal OH&S and workers’ compensation
protection.

Sometimes equality
means treating people the same, despite their differences, and sometimes it
means treating them as equals by accommodating their differences.-
Judge Rosalie Abella, Report of the Commission on Equality in Employment, Canada

Thursday, February 15, 2018

Suppose you are in a hotel and you see the window
washer outside your room being blown around and unable to secure the
platform. Should you say something? Would you?
And to whom?

What if you stop for lunch on the weekend
and the roofers on the steep slop of the mall across the street are three
stories up and not tied off (and have no other fall restraint system in place)?

What if your child comes home from his
first week on a summer job concerned about the lack of personal protective equipment
for the pesticides they are having to use but is fearful of losing the work by complaining?

If you see an unsafe work situation at work,
you have an obligation to say something.Employers have a duty to keep workers and the workplace safe for workers
and “other persons” in the workplace.If
you are a worker, you also have a right to refuse unsafe work.But what if you are not a worker? What if the
unsafe work or condition is something you observe but are fearful of reprisals
if you intervene on your own?

Most people would agree that you have a moral
obligation to say something to prevent harm.Most occupational safety and health and workers’ compensation
authorities have information on their websites advising who to call or contact
in the case of immanent danger to life or health.For example, WorkSafeBC’s Prevention
Information Line (see webpage https://www.worksafebc.com/en/contact-us/departments-and-services/health-safety-prevention
), states the following:

Fatalities and serious injuries: Call the
numbers above, 24 hours a day, 7 days a week.

Note how this organization removes the
barrier of language and allows anonymous reporting.There are, however, other barriers.There is no facility to report by email or
internet form, no facility to submit files, documents or photos, and, short of emergencies,
access time is limited to normal daytime hours Monday to Friday. Ideally, any person—worker or member of the
general public—should be able to report
unsafe work without having to judge if it is an “immanent” danger.

In Washington State, the Department of
Labor and Industries advises you fill out the following form:

The website continues with instructions to “Mail,
fax, or hand deliver a completed complaint form to any L&I office.”It also advises “Your name & contact
information (you may request anonymity or confidentiality for safety
complaints).”

This approach has some barriers.First, not all of us have the time or inclination
to download a document with about 20 fields, (try and do that on your smartphone and I bet
you will abandon the effort) . The form cannot be submitted as an email.There is no provision for the form to be
completed anonymously (although you can request anonymity and confidentiality).

Contrast this approach with taken by Alberta
Labour.You can “complain” about unsafe
work using an online form.Their website
(https://work.alberta.ca/occupational-health-safety/file-a-complaint.html
)states “Anyone can report unsafe conditions at a
workplace; you don’t have to be employed by a business to do so.”The web form has only
a few mandatory fields and you can remain anonymous, although anonymity, of
course, means officials can’t contact you for follow-up details or additional information.

The Workers’ Safety and Compensation
Commission (WSCC of the Northwest Territories and Nunavut) has a similar online
form but has the added “search and view” feature.The screen shot shows the detail available using
this function.It allows anyone to
follow up on what is being reported and what happened as a result of a report.The report is sortable on multiple fields.

I particularly like this level of
transparency.While individual firms and
persons are protected, it raises the profile of health and safety.It also increases the perception that unsafe
work will be detected and reported.For some
organizations this increased risk may act as a deterrent to unsafe or unhealthy
workplaces. I’m not suggesting OH&S inspection should be crowd sourced, but
allowing and encouraging public participation in making workplaces safe and
healthy has the added advantage of raising societal awareness on this important
issue.

When you report a dangerous workplace, you
will be required to give your name and contact information for follow-up. Our
safety officers do not respond to anonymous complaints.

This barrier may discourage anyone from “getting
involved” and the rationale for this exclusion is not explained.

One of the best online forms I’ve seen for
reporting unsafe work comes from the Australian Capital Territory.The Access
Canberra webpage (https://www.accesscanberra.act.gov.au/app/forms/worksafe_report
)has a simple form complete with the
ability to upload documents or files and includes an interactive map to pinpoint
the closest physical location of the concern. Think about the investigative value of
uploading photos that are geotagged and timestamps. It also has a tick box to “submit anonymously”.The mobile version of this page is just as
good and works well on a smartphone.

The purpose of reporting an unsafe
workplace is prevention.Barriers to
reporting defeat this purpose.Reporting
unsafe workplaces and situations should be simple, quick and as barrier free as possible.My checklist
for a good “report unsafe work” site includes:

Accessible (multi-lingual if possible)

Available 24 hours a day, 7 days per week

Open to reports from the general public

Allows anonymous submissions

Permits attachments (documents, photos,
etc.)

Simple and quick to submit from a smartphone

Provides a tracking reference to the
submitter

Provides a transparent process for showing
recent submissions and actions

Its time workers’ compensation and Occupational
Health and Safetyorganizations begin to
leverage the power of instant communications and encourages greater public
participation in making workplaces as safe and healthy as possible.

Wednesday, January 3, 2018

Over the last several years, I have been
looking early workers’ compensation systems in North America. The striking surge in workers’ compensation
legislation among US states and Canadian provinces in the early decades of the
twentieth century is evidence of a societal change that transcended party
politics and established social convention.

There is some debate as to which state or
province had the first true workers’ compensation system.Some cite Wisconsin as the first US “constitutional”
workers’ compensation system to come into force.In Canada, many point to Ontario while others,
including Arthur Larson, cite British Columbia’s 1903 legislation as the first
on this continent.

The first true compensation act adopted not
only in Canada, but in North America and indeed the entire New World, was
enacted in British Columbia on June 21, 1902 [Effective May 1, 1903]”Arthur Larson “Workers’ Compensation Reform
– The Canadian Example”, Meredith MemorialLecture, 1987.

One confusion over which jurisdiction ranks
first to have a workers’ compensation system depends on what you consider the
starting date of the legislation.You
will note there is usually a gap between the passage of legislation and the
effective date on which the first claim might be accepted.This period is necessary to give life to the
legislation.Administrative bodies have
to be created, administrators hired, office acquired, employers identified/enrolled
(classified, assessed premiums, etc.), forms designed, systems established, and
so on.

Legislators then as now could “borrow” concepts
and even copy wording from other jurisdictions.You can see this when you look at early versions of legislation.The identical wording of some sections of
legislation may be found in states or provinces on opposite sides of the continent.It stands to reason that forms to report injuries
and start claims will ask similar questions; after all, the “who, what, where, when”
questions are necessary regardless of the underlying legislation. What struck
me as I looked back at the beginnings of workers’ compensation was the striking
similarity in administrative structures and even forms between independent
jurisdictions.I still have no explicit answer
that concretely accounts for the similarities
(including features such as design, questions asked, form numbers and
colouring) between “report of injury” forms used in widely separated
jurisdictions.The obvious answer is
that the administrative structures and processes were copied, however, there is
no obvious answer as to how exactly that worked in most jurisdictions.

Part of the answer may arise from the work
of people like Frank Webster Hinsdale.Hinsdale was born in New York in 1862 and died in Vancouver in 1932 but
moved around a lot between those years.I found clippings from Washington state describing him as an entrepreneur,
living in Washington and buying coal properties in British Columbia in 1909. In
1910 he was with the Olympic National Bank and then is reported as working for
the Washington State Industrial Insurance Commission.That state was just setting up its workers’
compensation system and it appears Hinsdale traveled much of the state,
explaining to business and others how the system would work.In 1911, he assumed the position of Chief
Auditor for the Industrial Insurance Commission.

The next record I could find of Hinsdale’s
work was his testimony to the Ontario Royal Commission on Workmen’s
Compensation in January 1913.The minutes of his evidence before Sir William
Meredith provide insight into the thinking behind workers’ compensation in Washington
State.Meredith was interested not just
in the words that framed the legislation, but the processes and how things
actually worked. Hinsdale provided his insight and the rationale behind certain
practices.

At one point in the testimony, Hinsdale is
asked to comment on a common criticism of workers’ compensation, the idea that insurance
pooled risk removes employer incentives towards safety.Hinsdale responded:

I cannot imagine why an employer who finds
that his rate is increasing, or who is confronted with a demand for a
contribution to the fund would not say to himself, ‘what causes all these
accidents?’ I cannot imagine why he should not immediately want to install
every safety device possible, and after he has installed them in his own place,
I should think that he would require them to be installed in every other place.Meredith, Minutes of Evidence, Vol. 2: 286

By the end of 1913, Hinsdale was hired away
from Washington to head up Oregon State’s implementation of workers’
compensation.Skip ahead to 1916, and Hinsdale
appears in British Columbia.That province
passed its new Workmen’s Compensation Act on May 26 1916 with an implementation
date of January 1, 1917.A newspaper
report from July 2016 picks up the story:

WORKMEN S COMPENSATION EXPERT MR. FRANK W.
HINSDALE, who, as Premier Bowser announced at Phoenix, has been engaged by the
government to inaugurate the system under the new Workmen's Compensation Act,
is said to be one of the greatest authorities on the continent on the
administration of such legislation. He inaugurated the Washington
administrative system as chief auditor and then did the same for Oregon.He later inaugurated [the Ontario] system and
then went to Halifax, where the Nova Scotia government has just brought a new
act into force.July 25, 1916 Vancouver Daily World from
Vancouver, · Page 8

Hinsdale got right to work and the
newspaper reports of the day quote him outlining his work:

...[O]n the day when the 'Workmen's
Compensation Act' comes into force the whole machinery for the administration
of the act must be moving……The mere enumeration of the names and addresses
of these employers, with notes showing the nature and proper classification of
their industries, or of the branch or departments of their business which would
be within the scope of the act, is a work of considerable magnitude.

That term, “the machinery for the
administration” of the workers’ compensation system reflects the thinking of
the industrial age and the practicality of translating legislative action into workable
processes. I have no direct evidence
that Hinsdale personally accounts for the many similarities one finds between across
the jurisdictions he touched, but it seems likely that he and others like him
account for many of the similarities we find that were there in the beginning
and persist to the present day.

Hinsdale stayed on in BC as Secretary to
the Board.The last reference I could
find to his work was a note in the 1931 Annual Report which reports that notes “the
late Actuary, Frank W. Hinsdale, F.C.A.S.” certified the financial actuarial
evaluations to December 31, 1931.

It is often said that workers’ compensation
jurisdictions can learn from each other.While true in principle and easy to say, no workers’ compensation system
can learn anything from any other system without people like Frank W. Hinsdale
facilitating that learning, sharing knowledge and passing on experiences.

Thanks, Frank.

[Access to the documents cited above was provided by the Librarian, Secretary of State, Washington and the Librarian and library staff at WorkSafeBC, which also funded some some research into its early history].

[Note: I would welcome more information on the setting up of workers' compensation systems after legislation and before implementation as well as copies of the first forms used in your jurisdiction].

Tuesday, May 23, 2017

For the last few months I have
been researching the public policy criteria for determining who is covered by workers’ compensation and
who is not. From a public policy perspective, an accurate statement of "percentage of the employed labour force covered by workers' compensation" is an important foundational statistic to any public policy evaluation or reform. Some data do exist but, so far, it appears:

No jurisdiction publishes counts
of those who voluntarily “opt in” to coverage

No jurisdiction publishes counts
of persons (as opposed to the number of waivers issued)exempted by waivers, elections, or opt-out provisions

Public policy justifications for
exclusions or exemptions are almost non-existent

Where justifications are offered,
they primarily rest on the historical evolution of workers' compensation coverage

While there are some published coverage estimates based
on workers’ compensation data regarding the numbers of workers covered, most do
not explain their methodology. Many rely on external data sources (unemployment insurance
data, employment surveys).

Even the wording surrounding
coverage in workers’ compensation is not consistent. In some cases, certain industries, occupations,
worker categories, or employers are “exempted”, others “excluded”, and still
others may “seek a waiver” from the otherwise universal or sectoral coverage
rules. Often, there are rules that allow
some exempted or excluded categories to apply for coverage on an optional or
“elective” basis. Rarely, however, are detailed
estimates of number or proportions of the work force within and beyond coverage
provided at the state or provincial level.

The inconsistencies in workers’
compensation coverage rules have real-life implications for those in the scope
of coverage and outside it. The lack of
consistency in coverage rules may lead to erroneous assumptions that can leave
workers and their families destitute and employers without the protection of the
workers’ compensation exclusive remedy. Worse
yet, the lack of workers’ compensation coverage externalizes health care costs
of work-related injuries to other medical plans (private and public) thus
raising costs for the funders (including taxpayers as well as individual and
group disability insurance plans).

Workers’ compensation premiums
are often justified as a means of confining the financial costs of work-related
injury, illness and disease to the industry that gives rise to them; if
workers’ compensation costs rise, there is an incentive to greater investment
in safety and prevention. For workers
and employers outside the workers’ compensation scope of coverage, those
incentives may be less clear and far less direct. More importantly, those financial costs for
wage replacement and medical aid (diagnostics, treatment, rehabilitation) are
externalized to others. If someone else bears
the financial cost of work-related injury, why bother invest in prevention?

I’ve asked several government policy
branches responsible for health and workers’ compensation to provide their public
policy rationale for limiting the scope of workers’ compensation coverage. The few formal responses I have received so
far are like this one (I won’t name the jurisdiction):

“Many of the [excluded] industries listed… were deemed ‘low risk’ while others actively lobbied to be exempt from coverage.”

“Low risk” is not defined and “active
lobbying” implies that those with good lobbyists are the only ones likely to be
excluded.

In my research so far, I have examined about 70 jurisdictions in Canada, the U.S. and Australia. The public policy approaches for determining who is and who is not in the scope of coverage fall into the following general categories of workers’ compensation coverage:

Waiver exclusion:Ability to “opt out” of coverage if certain conditions are met

The following list provides some
of the occupations and industries that may be excluded from workers’ compensation
coverage (NOTE: Many of those occupations/industries in this list are in fact mandatorily covered in some or most jurisdictions).The list is not comprehensive
nor is it universal. The jurisdictions
mentioned are illustrative only; others may or may not have similar (or
more or less restrictive) provisions for a given occupation or industry.This listing is provided here to illustrate
the range of exclusions and the variability in the criteria among various
jurisdictions:

Agricultural / farm workers /harvest
help/Gardeners – Exempt if 5 or fewer in Florida, if
family farm and less than $8k payroll in Minnesota

Babysitters and Child Care - Child care before or after
school of less than 15 hours per week is optional in British Columbia but
mandatory if more than 15 hours per
week.

Casual employees - Exempt if less than 26 hours weekly
in Connecticut, if less than 20 consecutive days in Kentucky

Cleaning persons/ Private household
workers- Household or domestic
employees whose typical duties include house cleaning and yard work are exempt
in Montana. Exempt if less than 20 hrs/week and 6 less than 6 weeks in any 13
week period in South Dakota.

Commission-paid salespersons—This is often listed as a separate category from
real estate and insurance commissioned sales but criteria
vary.

Sawmill or logging operators - Exempt if >10 employees who
operate less than 60 days over a 6 month period in North Carolina

Self-employed/ Independent Contractor - Very common exclusion but often with
optional or voluntary inclusions offered.

Sole proprietorship or partnership
(Sole trader in Australia) - Exempt
in most places but in Tennessee, in construction, sole proprietors and partners
are required to cover themselves or be listed on the State Exemption Registry

State / provincial employees - Voluntary for state and
political subdivisions in Tennessee, exempt for elected or appointed officials
in South Carolina

Teachers – Most teachers in Alberta and Saskatchewan are
exempt.

Volunteer first responders, law
enforcement, patrol members or rescue workers -specifically
covered in Minnesota but certain groups like ski patrol persons exempt in North
Carolina.

There are also groups of
individuals that may be excluded from some or all coverage under workers’
compensation. Undocumented workers have
been denied coverage for vocational rehabilitation, for example, because of
their illegal immigration status (Ortiz
v. Cement Prod., Inc., 708 N.W.2d 610 (Neb. 2005)). Workers in concurrent employment may have limited coverage (see

Beyond the problems for workers
and employers associated with the lack of coverage for certain industries and
occupations, the absence of concise, comparative numeric data leaves policy
makers to make important decisions on shaky assumptions. Finding an accurate answer to the question "What percentage of the employed labour force covered by workers' compensation?" should not depend entirely on indirect calculations. "Employment" and "employed labour force" are frequently sampled and reported, so choosing a recognized denominator should be straightforward. In states like New Mexico or Oregon with direct worker premiums or per capita payroll charges for workers' compensation, calculating the numerator should be trivial. Unfortunately most jurisdictions only collect payroll not employment data so no direct numerator data is available to them.

In the interests of good public policy and transparency, jurisdictional reporting of the percentage of the employed labour force covered and not covered by workers' compensation should be improved and standardized. At a minimum, each jurisdiction should be report the number and percentage of employed labour force covered, the number of firms and associated workers covered by "opt in" or voluntary coverage provisions, and the number of firms and associated workers exempted or excluded by waiver or other application process.

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About Terry Bogyo

I am a student of workers’ compensation systems. Many years ago I discovered two things about this area. First, workers’ comp and OH&S are of vital importance to people. Protecting, caring for and providing compensation to workers are important, noble and morally responsible endeavors. The second thing I learned was that no matter how much I knew about workers' comp/OH&S, there was always so much more to learn. This is an endlessly challenging area of study. My purpose, therefore, is not to lecture, but to reflect on the ideas and issues that are topical in this area... and to invite others to share in a learning experience. By adding your knowledge and insights, others with similar interests can participate in the discovery and study of this important domain.